Can a former municipal attorney who is still handling the town's tax-foreclosure cases take on a private client's tax-assessment appeal against that same town?

Plain-English summary

An attorney who had been replaced as municipal attorney on January 1, 1964, but who was still performing services for the municipality in foreclosing certain tax-sale certificates assigned to his office by a 1961 contract, asked whether he could now represent a local taxpayer in an appeal from a 1964 tax assessment. He stated that none of the tax-sale certificates he was handling involved property owned by the appealing taxpayer or was otherwise the subject of the proposed appeal, and that he was not aware of any confidence reposed in his office during his prior municipal representation that would touch the appeal.

The Committee said that even though the particular foreclosure cases might present no conflict with the issues in the proposed appeal, the fact remained that in the foreclosures the attorney was representing and furthering the interests of his client, the municipality, while in the proposed tax appeal he would be representing and furthering the interests of a private client whose interests are adverse to the municipality.

The Committee applied Canon 6: a lawyer representing one client cannot ethically accept a retainer from another against his first client. Where the conflict is between two private clients, an attorney may in exceptional cases act with the informed consent of each, but where one of the clients is a public agency, consent is not available.

Currency note

This opinion was issued in December 1964, before New Jersey's September 13, 1971 adoption of the Disciplinary Rules (Code of Professional Responsibility), and well before the 1984 Rules of Professional Conduct and all later revisions. It applied Canon 6 of the former Canons of Professional Ethics. Conflicts of interest are now treated under RPC 1.7. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.

Common questions

Q: Can a lawyer who still handles a town's tax foreclosures take a private client's tax-assessment appeal against that town?

A: No. The Committee held that while the lawyer is still representing the municipality in the foreclosures, he cannot at the same time represent a private taxpayer whose interests in the appeal are adverse to the municipality.

Q: Does it matter that the foreclosure cases and the appeal involve different properties and no shared confidences?

A: No. The Committee said that even if the particular matters present no overlapping issue, the lawyer would still be furthering the municipality's interests in one matter and a private client's adverse interests in the other at the same time.

Q: Could the clients consent to the dual representation?

A: No. The Committee held that where one of the clients is a public agency, consent is not available; the exceptional-case consent route applies only between two private clients.

Background and rules framework

The opinion applied Canon 6 of the former Canons of Professional Ethics, which barred representing conflicting interests and made consent unavailable when a public agency is one of the clients. In current New Jersey terms, concurrent conflicts are governed by RPC 1.7. The Committee relied on Drinker's Legal Ethics and its own Opinion 4.

Citations and references

Rules of Professional Conduct (as in effect at the time):

• Canon of Professional Ethics 6 (representing conflicting interests; consent unavailable where a public agency is a client)

Other opinions cited:

• N.J. ACPE Opinion 4, 86 N.J.L.J. 361 (1963): public-body conflicts

See also

• NJ ACPE Op. 69: Municipal Attorney Doing a Developer's Legal Work for an Indirect Fee
• NJ ACPE Op. 173: Municipal Attorney Foreclosing Private Tax-Sale Certificates
• NJ ACPE Op. 137: Municipal Attorney Suing the School Board
• NJ ACPE Op. 94: Foreclosure Against a Former Client

Source

• Landing page: https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp65-1.html

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

87 N.J.L.J. 810
December 17, 1964

OPINION 65

Conflict of Interest
Municipal Tax Attorney

An attorney who was replaced as municipal attorney on January 1, 1964, but who is still performing services to the municipality in the foreclosure of certain tax sale certificates assigned to his office by contract in 1961, inquires whether he may now undertake to represent a local taxpayer in the municipality in an appeal from a 1964 tax assessment. He states that none of the tax sale certificates on which he is representing the municipality involves property owned by the taxpayer appealing his assessment, nor are they otherwise the subject of the proposed appeal; he further states that he is not aware of any confidence which has been reposed with his office during his representation of the municipality as municipal attorney which in any way would touch upon the proposed prosecution of the tax appeal.

While the particular issues involved in the cases in which he is representing the municipality on the tax foreclosures may not present any conflicts with those in the proposed appeal of the taxpayer on his assessment, the fact remains that in the foreclosure cases the attorney is representing and attempting to further the interests of his client, the municipality, and in the proposed tax appeal he would be representing and furthering the interests of a private client whose interests are adverse to the attorney's original client, the municipality. Clearly, a lawyer representing one client cannot ethically at the same time accept a retainer from another against his first client, Canons of Professional Ethics, Canon 6. Where such a conflict exists between two private clients, an attorney in exceptional cases, with the informed consent of each client, may properly act, but, as has been noted, where one of the clients is a public agency consent is not available. Drinker, Legal Ethics 120 (1963); N.J. Advisory Committee on Professional Ethics, Opinion 4, 86 N.J.L.J. 361 (1963).